A policy of banning all sex in prison will not work

A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment.

The challenge currently facing prisons with regards sexual health and public opinion is not dissimilar to that faced by Edinburgh in the 1980s in the face of the HIV crisis. That was the chilling warning heard by the Howard League Commission on sex in prisons. The Commission’s first briefing, on consensual sex in male prisons, is published today. In the 1980s, Edinburgh saw a police crackdown on heroin use that was successful in cutting the number of available syringes and equipment at the very same time as HIV was introduced into the local drug scene. The result was that drug users shared needles and HIV spread, so that the city was briefly the aids capital of europe. The crisis was eventually eased by a public health approach that included needle exchanges and the distribution of methadone. The balance between crackdowns that play to punitive public sentiment and a public health approach that will actually reduce harm and prove most effective in protecting communities is one Chris Grayling should bear in mind, as he considers a crackdown on sex in prison.

The statistics on consensual sex in men’s prisons are limited and vague – a Home Office study back in 1994/5 reported that between 1.6 and 3.4 per cent of their sample adult male prisoners admitted to being engaged in consensual sex with an inmate. However, the true figure is thought to be higher. The British Association of Sexual Health and HIV told us that while female prisoners were likely to be open about sex with each other, male prisoners were not. According to the Terrence Higgins Trust male prisons tend to be more homophobic than the wider community, making honest reporting harder. Indeed, far from being ‘cosy’ for LGBT prisoners, all the evidence suggests that they are at greater risk of discrimination and most vulnerable to sexual abuse while inside.

The prison service instruction manual states: ‘there is no rule specifically prohibiting sexual acts between prisoners, but if they are observed by someone who finds (or could potentially find) their behaviour offensive, a charge…may
be appropriate.’ in practice this results in an inconsistent approach and a system ripe for abuse. Some prisoners have reported being left alone as long as they were discreet, while others reported staff trying to catch them out in order to issue them with a warning. It has also been suggested that separation and being written up can be used as a means of discriminating against openly gay prisoners, while policies preventing sex in prisons can be seen to ‘legitimise’ homophobic attitudes.

There is no denying that the issue of consensual sex in prison is a tricky one. The National Offender Management Service argued, in their evidence to us, that it is virtually impossible for staff to tell whether a relationship is consensual or coercive. It can be further complicated by the fact that what starts as consensual can later become coercive.

On a trip to the US I met Troy Isaak, a member of Just Detention International Survivors’ Council. He told me that during one period of incarceration in a Los Angeles jail he entered into a consensual relationship with another inmate but then when the relationship broke down he was repeatedly raped. Staff refused to do anything as he’d originally consented. Sex is banned in US jails.

However we must be careful not to learn the wrong lesson from cases such as this, which call for greater action in tackling the complexities of sexual abuse behind bars, not making the system more punitive for those who engage in consensual sex. A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment. While a 2005 report (pdf) from the Prison Reform Trust and National Aids Trust expressed concern that ‘if sexual activity is subject to punitive sanctions, or stigmatised, the likelihood is that people will be less likely to take precautions.’ Most respondents to the Home Office study admitted they did not practice safe sex.

The Department of Health states that prisoners are more likely to be affected by blood-borne diseases, more likely to have engaged in high-risk behaviours and as a result are at higher risk of sexually transmitted infections. To ignore this and then ignore calls for help in practicing safe sex is, according to the Terrence Higgins Trust, ‘highly irresponsible and unethical.’

Her Majesty’s Prison Inspectorate, the Terrence Higgins Trust and National Aids Trust all raised concerns with the Commission about the variable access to condoms within prisons. We heard a range of approaches. Some prisons offer advice and make barrier protection, dental dams and lubrication freely available. However, in at least one privately run prison prisoners are only issued with a condom if they then return it used before being issued with another. Other prisons refuse to issue barrier protection. We received evidence from one HIV-positive prisoner who was refused protection and, as a result, went on to have unprotected sex with another inmate. We heard that some prisoners are sanctioned for requesting too many condoms. One prison governor even said they had no need to issue barrier protection as his prison contained no homosexuals. The National Aids Trust said, ‘attempts to control consensual sexual activity between prisoners risk undermining efforts to promote HIV prevention and improved sexual health in prison populations.’

What Chris Grayling and others need to remember is that this is not merely a health crisis confined to prisons: all of these prisoners will eventually return to their communities and will pass on any infections to the wider community. A policy of banning all sex in prison will not work: it will further legitimise homophobia within prisons, its implementation will result in a system ripe for abuse as well as discrimination against LGBT prisoners; it will discourage prisoners from reporting rape and sexual assault and divert attention from the real law and order issue – which is the correct management and response to occurrences of coercive sex in custody. Most importantly of all, it does nothing to address the fact that prisoners will continue to have sex and an even more punitive system will worsen the risky practices causing this public health crisis.

In the US, Just Detention International successfully showed that prison rape was not only inhumane but also cost the community far more – financially as well as socially – than successfully preventing rape behind bars. Similarly, the cost to us all will be greater in dealing with the spread of STIs than a pragmatic policy to ensure safe sex in our prison system.

Michael Amherst is on the board of Just Detention International and the Howard League Commission on Sex in Prisons

A prison guard at HMP Pentonville. Photo: Getty
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Under Trump, American democracy will change – with the whole world at stake

We know that powerful countries don’t work well when nuance is cast overboard. Is this the collapse of the pluralist order?

In the weeks since 8 November, when Donald Trump won a majority of the electoral college despite losing the popular vote by three million, the culture of informed, participatory, representative democracy has taken one hit after another.

Before our eyes, the American republic, that most durable of representative democratic experiments, is morphing into something unrecognisable. At the federal level, the mediating, moderating institutions are withering away, leaving an abyss in the centre of US politics that Trump threatens to fill with a toxic appeal to race and religion baiting. Day after day, one reads reports of hate crimes and a surge in incivility – of Muslim women attacked in the streets, of swastikas painted on buildings, of Latino kids in schools being taunted about the wall that Trump has promised to build on the Mexican border. The Ku Klux Klan has rallied in several cities. “Alt-right” groups – some of which share members with neo-Nazi organisations – have held triumphalist events in Washington, DC.

Through it all, Trump has spent his time not trying to show that he will be a unifying president, not condemning this wave of violence, but instead holding his own rolling series of triumphalist rallies designed to shore up his personality cult.

Trump is only nominally a Grand Old Party Republican. His power derives not from understanding the ins and outs of party politics, playing by the long-established rules of a two-party system, nor from having studied the workings of the constitution, nor from any specialised legal or diplomatic knowledge. Rather, it stems from direct appeals to “the people”. Though a billionaire, Trump has fashioned himself as a far-right populist, a leader who speaks to the sensibilities of the mob with no time or patience for nuance.

He has enthusiastically endorsed “the torture” against terrorism suspects; collective punishment and executions; religious tests of entry for would-be immigrants; registries of Muslims; the jailing of his political opponents; clampdowns on free speech and on the functioning of investigative media outlets; stop-and-frisk policing strategies against minorities; wholesale deportation policies; and many other noxious ideas. He has deliberately coarsened America’s political language – systematically humiliating opponents and bringing his crowds down with him into the political sewers in which he thrives. His project is that of the classic totalitarian: make everyone and every major institution of state so grubby, so complicit, that, over time, they come to feel that they have no choice but to collaborate with an agenda of oppression.

We know that powerful countries don’t work well when nuance is cast overboard. Totalitarian projects garner support until they throw entire populations into disaster – into economic calamity, into spiralling conflicts and wars, into civil strife. Trump, as he makes policy on the hoof and hires a cabinet that seems to be made up of equal parts fanatics, conspiracy theorists, incompetents and generals, shows no sign of understanding this. He is a leader without internal limits.

Using his Twitter platform, in particular, Trump spent the weeks between election day and his inauguration wielding a wrecking ball against everything from environmental policy to gender equality regulations; from the “one China” policy carefully respected by leaders of both parties for more than 40 years to policies against expanded Israeli settlements in the occupied territories. Three days before Christmas, he suggested that the US would be expanding its nuclear arsenal under his leadership.

This isn’t just dangerous; it’s beyond idiotic – a man who will soon wield unholy power over the lives of everyone on this planet intervening in the most delicate of policy areas with the bluntest of cudgels. The idea of making nuclear policy through 140-character tweets is insane, the stuff of bad late-night comedy rather than serious international diplomacy. And yet, intellectually, this is where America’s incoming leadership now resides.

Trump’s actions over these past weeks indicate that he is a person of staggering hubris, of thoughtlessness, of impulsiveness – and that, as he presented himself time and again during the election season, he is a boy-man, with the sensibilities of a teenager rather than a mature adult. He comes across as someone megalomaniacally confident that he can think and do no wrong; who wants to listen only to sycophants; and who is convinced that his brand of instinctual politics (the kind that has no need for dreary, real-world interventions such as daily security briefings) will triumph over all.

On the night of the election, the New Yorker editor, David Remnick, wrote an impassioned essay about what he identified as an “American tragedy”. But this doesn’t do full justice to the catastrophe that Trump’s election represents. His is a triumph of the will, as surely as was Hitler’s rise to power in 1932-33. He has ridden and will continue to try to ride roughshod over his opponents – both within the craven GOP, which has sacrificed all semblance of democratic credibility in pursuit of power, and in the Democratic Party and beyond.

Because he enters the White House as a conqueror rather than a product of years of politicking within the existing governing structures, he knows that he can appeal to “the people” – not all of the people but those white, conservative, mainly rural and suburban residents who make up the core of his support – to get his way.

Will Trump succeed in this mad re-imagining of what the United States is? There will be large opposition – on the streets, on university campuses, in the courts and in the state houses of liberal states up and down both coasts. In wealthy and large states such as California, where the cities, state legislatures and the governor’s offices are united in opposition to huge parts of Trump’s agenda, it is likely that on a day-to-day basis residents will avoid the brunt of the impact.

It is entirely possible that there will be a flowering of radical politics in cities such as Los Angeles, San Francisco, Portland, Seattle, New York and Boston, as well as inward migration from the heartlands of large numbers of political progressives and members of racial and religious minorities. Yet in more conservative parts of the country – in Texas, say, or Oklahoma, Mississippi or Alabama, or a host of other states dominated by reactionary political leaders – life for immigrants, the working poor, single mothers and Muslims (just to take a few examples) will become harsher. In many states, it is not at all clear that the political leadership will be willing or able to stand up to Trump’s mob.

It’s also far from certain that local police forces or county sheriffs will be able, or even particularly inclined, to stop the unleashing of pogroms. After all, these are places where law enforcement long turned a blind eye to lynch mobs directed against black residents and black-run businesses. It is not such a stretch to imagine a similar passivity in the face of anti-Muslim or anti-Mexican violence today.

Nor, on the international stage, is it likely that this troupe of political novices will be able to control the forces of resentment they are unleashing. Trump’s cabinet is full of Islamophobes who believe that the entire Muslim world is now America’s enemy. It is dominated by China-haters and climate change deniers. By the time Trump assumes the presidency, he will have done an almighty job of pissing off swaths of the world’s population.

The optimistic scenario is that the world turns its back on an inward-looking America, getting on with the serious business of international affairs while the pre-eminent superpower throws a four-to-eight-year tantrum. It is more likely, however, that there will be a scramble for influence as US soft power wanes and other powerful countries and non-state organisations seek to fill a vacuum created by the dearth of sensible American voices and policies. Such players could range from economic powerhouses such as China and Germany, seeking, or being forced to accept, a bigger military and geopolitical role, to resurgent powers such as Russia – as well as non-state actors ranging from terrorist entities such as Isis to techno-anarchist groups such as WikiLeaks.

As America’s image mutates, they will have a growing opportunity either to sow instability or to reshape regions of the world in their own image. The nightmare scenario is that Trump, relying on his instincts in place of the counsel of experts, seeks to shore up America’s declining influence through spasmodic demonstrations of military power – bullying and threatening one country after another, much as fascist regimes did in the 1930s. The consequences could be disastrous: US nationalism unleashed could plunge the world into conflict.

Thus we hover on the edge of a catastrophe: a great democracy that has come to be controlled by demagogues, ready to pounce at the slightest provocation, itching for an excuse to implement emergency measures against Muslims and others, convinced that its military might will cow the rest of the world into toeing the Trumpian line.

Sasha Abramsky writes for the Nation magazine and is the author of “The American Way of Poverty” (Nation Books)

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era